Medical Marijuana Discrimination Claims Against Con Edison Survive Summary Judgment

In Gordon v Consolidated Edison, Inc., No. 152614/2017, 2020 WL 192980 (N.Y. Sup Ct, New York County March 16, 2020), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s disability discrimination claims under the New York State and City Human Rights Laws.

From the decision:

Gordon has established a prima facie case of discrimination based on her status as a certified medical marijuana patient. CEI’s argument that Gordon was not a member of a protected class is unavailing because, although she was not a certified medical marijuana patient when she failed her drug test, it is undisputed that she had become certified before her termination and that **8 she made CECNY aware of this fact (Doc. 42). Since Gordon was “disabled” within the purview of the CCA at the time that she was fired, she was a member of a “protected class” (see Public Health Law § 3369). Additionally, since the protections under the NYCHRL are more expansive than those under the NYSHRL (see Curtin v J-V Successors, Inc., 2017 NY Slip Op 30651[U], 2017 NY Misc LEXIS 1224, *10 [Sup Ct, NY County 2017]; Spellman v Gucci Am. Inc., 2015 NY Slip Op 31728[U], 2015 NY Misc LEXIS 3326, *7-8 [Sup Ct, NY County 2015]), this Court rejects CEI’s argument that Gordon’s medical marijuana status, which is based on her physical impairment, is not a disability under the NYCHRL.4 CEI’s contention that its adverse action against Gordon cannot give rise to an inference of discrimination is without merit for the same reasons.

Although CEI has proffered a legitimate, non-discriminatory reason for the adverse action against Gordon by submitting proof that she violated its drug policy within the first six months of her tenure, and that it was CECNY’s policy to terminate employees under these circumstances (see McClarence v International Union of Operating Engineers Local Union, 2017 WL 3887883, *2 [EDNY 2017]; Fahey v City of New York, 2012 WL 413990, *9 [EDNY 2012]; Knighton v City of Syracuse Fire Dept., 145 F Supp 2d 217, 224 [NDNY 2001]), this Court nevertheless finds that, viewing the evidence in the light most favorable to the plaintiff, Gordon has raised an issue of fact as to whether this reason is pretextual (see Watson v Emblem Health Services, 158 AD3d at 184; **9 Coronado v Weill Cornell Med. Coll., 66 Misc 3d 404, 407-408 [Sup Ct, NY County 2019]). As Gordon asserts in her opposition papers, employees who violate the drug policy may be afforded an opportunity to attend rehabilitation and, although CEI argues that this practice does not apply to new employees within their first six months of employment, there is no such language in the drug policy to this effect (Doc. 46 at Exhibit A). “Since plaintiff’s discrimination claims survive summary judgment under the NYSHRL, they survive dismissal under the more lenient NYCHRL for the same reasons”


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